Opinion
Docket No. Crim. 10553.
February 15, 1967.
APPLICATION for relief under California Rules of Court, rule 31(a), from a late filing of a notice of appeal in the Superior Court of Fresno County. Application granted.
Mike Ybarra Barrozo, in pro. per., and Lin B. Densmore, under appointment by the Supreme Court, for Defendant and Appellant.
Thomas C. Lynch, Attorney General, and Marjory E. Winston, Deputy Attorney General, for Plaintiff and Respondent.
Petitioner has applied for permission to file a late notice of appeal pursuant to rule 31(a) of the California Rules of Court. [1] After investigation, the Attorney General's office commendably has stipulated that the requested relief may be granted. This makes it unnecessary to discuss the facts in detail. Suffice it to say, that after petitioner's conviction, he applied for coram nobis in the superior court. The requested relief was denied by that court on June 28, 1966. Petitioner avers that he desired to appeal but that he did not receive notice of the denial until July 6, 1966. On July 15 petitioner mailed, by placing in a prison mailbox, his notice of appeal. This was not received by the superior court until July 19. A petition to file a late notice of appeal was filed July 29. Petitioner claims that prison officials were responsible for both the eight-day delay between June 28 and July 6 and the four-day delay between July 15 and July 19.
After this court had issued an order to show cause in this matter, and had appointed a referee, the Attorney General investigated mailing procedures in San Quentin and entered into a stipulation of facts concerning such procedures. It is not necessary to discuss such procedures because thereafter the deputy attorney general in charge of the case wrote to the referee stating that an investigation of mailing procedures had been made by the Attorney General's office, resulting in the stipulation of facts above mentioned. The letter concludes "In light thereof, this office does not oppose the granting of relief under Rules of Court, Rule 31(a)."
In view of this concession, it is obvious that petitioner is entitled to relief. The Clerk of the Superior Court of the County of Fresno is ordered to file the notice of appeal here involved, and thereafter to proceed to take whatever steps are necessary to perfect that appeal.
Traynor, C.J., McComb, J., Tobriner, J., Mosk, J., Burke, J., and Sullivan, J., concurred.